Mark Conley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 9:53 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Conley, August 12, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1512-CR-2342 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1508-F5-45

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2342 | August 12, 2016 Page 1 of 10

Case Summary [1] Mark Conley appeals his convictions and sentence for level 6 felony auto theft

and level 6 felony operating a motor vehicle while privileges are suspended as a

habitual traffic violator (“HTV”). The trial court also found Conley to be a

habitual offender. The trial court sentenced Conley to consecutive terms of two

and one-half years for auto theft, enhanced by five years based upon the

habitual offender finding, and two and one-half years for operating a motor

vehicle while privileges are suspended as an HTV, for an aggregate sentence of

ten years. On appeal, Conley argues that the trial court abused its discretion in

admitting certain evidence at trial. He also asserts that his sentence is

inappropriate in light of the nature of his offenses and his character. Finding no

abuse of discretion and that he has not met his burden to demonstrate that his

sentence is inappropriate, we affirm.

Facts and Procedural History [2] On Thursday, August 6, 2015, Michael Dexter parked his 1975 Harley

Davidson FXC motorcycle in his driveway on Schuyler Avenue in Tippecanoe

County. Around 7:30 the next morning, Dexter discovered that his motorcycle

was gone, and he contacted the police to report it stolen. That Sunday, Dexter

could hear his motorcycle being driven somewhere through his neighborhood. [3] Around noon on Monday, August 10, 2015, Matthew Lock was walking by a

friend’s house when he saw Conley working on what was later identified as

Dexter’s motorcycle in the friend’s driveway. When Lock realized that Conley

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was unable to start the motorcycle, he offered to help. Conley accepted Lock’s

assistance and told Lock that the motorcycle belonged to his father. Around

1:00 p.m. that day, Conley was driving Dexter’s motorcycle when it broke

down on I-65. Adam O’Connor pulled over to offer assistance. Indiana

Department of Transportation employee Danny Matlock also stopped to assist

Conley. 1 Conley told the men that he was having “some mechanical issues”

with the motorcycle and that the battery was dead. Tr. at 80. When Matlock

gave the license plate number of the motorcycle over his radio, Conley asked

O’Connor to “take him away from there to get him out of there because the

bike was hot – was stolen.” Id. at 138. O’Connor told Conley that he “didn’t

want to be involved” and that he could not give him a ride. Id. [4] After Matlock successfully jumpstarted the motorcycle, Conley drove away on

it. O’Connor immediately called the police to report Conley’s statement that

the motorcycle was stolen. Then, as O’Connor exited I-65 a little while later,

he saw Conley pushing the motorcycle into the parking lot of a gas station.

O’Connor again called the police to report his observation. [5] Indiana State Police Trooper Andrew Smith responded to the gas station and

found the motorcycle unattended near the air pumps. He confirmed through

dispatch that the motorcycle had been reported stolen and then spoke to

1 Specifically, Matlock worked for the “Traffic Management Division, Hoosier [H]elpers.” Tr. at 78. One of his job duties was to respond to emergencies on the interstate.

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O’Connor to obtain a description of Conley. Trooper Smith and another officer

subsequently located Conley behind a liquor store on the side of a nearby hotel. [6] The motorcycle was towed and examined for fingerprints. Conley’s fingerprint

was found on the motorcycle’s air breather cover. Conley was transported to

the police station and was interviewed on two separate occasions. In one

interview, Conley initially claimed that he had been drinking beer and

hitchhiking, but that he did not know anything about a motorcycle. However,

he eventually admitted to being a “runner” for the Outlaw motorcycle gang and

that he had been stealing motorcycles for the gang on a daily basis. Id. at 7;

State’s Ex. 13. Conley admitted that he had stolen Dexter’s motorcycle a few

days earlier, that it had broken down on the interstate, and that he took off after

a guy jumpstarted it for him. In a second interview, Conley admitted to

stealing Dexter’s motorcycle from a driveway on Schuyler Avenue. He stated

that he had started stealing “runner bikes” for the Outlaw motorcycle gang

approximately eighteen months prior. Tr. at 236. In his statements to police,

Conley indicated that as a runner, he transported drugs for the gang. [7] The State charged Conley with level 5 felony operating a motor vehicle while

privileges are forfeited for life and level 6 felony auto theft. The State also

alleged that Conley was a habitual offender. Prior to trial, Conley filed a

motion to suppress his statements to police referencing his involvement with the

Outlaw motorcycle gang arguing that the statements constituted improper

character evidence pursuant to Indiana Evidence Rule 404(b)(1). The trial

court ruled that any references to drug activity would be redacted but that the

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more general references to gang involvement were relevant and admissible to

show Conley’s motive and/or plan for stealing Dexter’s motorcycle. [8] A jury trial was subsequently held on the auto theft count. Conley renewed his

objection to the admissibility of his statements referencing gang involvement,

but the trial court overruled his objection. The jury found Conley guilty as

charged. Conley then waived his right to a jury trial on the remaining charges

and, following a bench trial, the trial court found Conley guilty of level 5 felony

operating a vehicle while privileges are forfeited for life. The trial court also

found Conley to be a habitual offender. [9] During sentencing, the trial court reduced Conley’s level 5 felony conviction to

a conviction for the lesser included offense of level 6 felony driving while

privileges are suspended as an HTV. The court sentenced Conley to

consecutive terms of two and one-half years for each level 6 felony, with the

auto theft count enhanced by five years based upon the habitual offender

finding, resulting in an aggregate sentence of ten years. This appeal ensued.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in admitting evidence regarding Conley’s gang involvement. [10] Conley first asserts that the trial court abused its discretion in admitting

evidence regarding his gang involvement. The trial court is afforded wide

discretion in ruling on the admissibility of evidence, and we review its ruling

only for an abuse of discretion. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind.

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2016). An abuse of discretion occurs when the decision is clearly against the

logic and effect of the facts and circumstances and the error affects a party’s

substantial rights. Id. We do not reweigh the evidence, and we consider only

the evidence that is either favorable to the ruling or unrefuted evidence

favorable to the defendant. Id. [11] During trial, the State moved to admit two redacted statements that Conley

made to police wherein he referenced the fact that he stole motorcycles for the

Outlaw motorcycle gang. Conley objected to the evidence as inadmissible

pursuant to Indiana Evidence Rule 404(b)(1), which provides that “[e]vidence

of a crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with

the character.” The rationale behind Rule 404(b) is that the jury is precluded

from making the “forbidden inference” that prior wrongful conduct suggests

present guilt. Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013). However, the

trial court overruled Conley’s objection and accepted the State’s reasoning that

testimony regarding Conley’s involvement in gang activity was admissible

pursuant to Indiana Evidence Rule 404(b)(2) as evidence of his motive or plan

in stealing Dexter’s motorcycle. See Ind. Evidence Rule 404(b)(2) (permitting

the introduction of evidence of other crimes, wrongs, or other acts for purposes

such as “motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.”). [12] In determining whether the trial court abused its discretion regarding the

admissibility of 404(b) evidence, we must determine whether the evidence of

Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2342 | August 12, 2016 Page 6 of 10 prior bad acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged acts. Bishop v. State, 40 N.E.3d 935, 951 (Ind. Ct. App. 2015), trans. denied. Second, we must balance the probative value of such evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Id; see Ind. Evidence Rule 403 (relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”) Here, as argued by the State and accepted by the trial court, the evidence of Conley’s gang activity was highly relevant to a matter at issue other than his alleged bad character. Indeed, Conley’s gang activity was directly relevant to his motive for stealing Dexter’s motorcycle. “Evidence of motive is always relevant in the proof of a crime.” Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002). 2 Conley does not argue in his appellate brief that the unfair prejudicial impact of the evidence substantially outweighed its probative value, and we do not think that it did based upon the high relevance of the evidence. Accordingly, the trial court did not abuse its discretion in admitting the evidence.

2 Although auto theft is not a crime of violence, we note that evidence of gang affiliation is routinely admitted as proof of motive to commit an alleged violent crime. See, e.g., Williams v. State, 690 N.E.2d 162, 173 (Ind. 1997) (conspiracy to commit murder and murder); Burgett v. State, 758 N.E.2d 571, 579-80 (Ind. Ct. App. 2001) (attempted murder), trans. denied (2002); Cadiz v. State, 683 N.E.2d 597, 599-600 (Ind. Ct. App. 1997) (attempted murder).

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Section 2 – Conley has not met his burden to demonstrate that his sentence is inappropriate. [13] Conley next claims that his sentence is inappropriate and invites this Court to

reduce his sentence pursuant to Indiana Appellate Rule 7(B) which provides

that we may revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, we find that the sentence “is inappropriate in light

of the nature of the offense and the character of the offender.” The defendant

bears the burden to persuade this Court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented, and the trial court’s judgment “should receive

considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

The principal role of appellate review is to attempt to “leaven the outliers.” Id.

at 1225. Appellate review “should focus on the forest—the aggregate

sentence—rather than the trees—consecutive or concurrent, number of counts,

or length of the sentence on any individual count.” Id. Whether we regard a

sentence as inappropriate at the end of the day turns on “our sense of the

culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other facts that come to light in a given case.” Id. at 1224. [14] Regarding the nature of the offenses, the advisory sentence is the starting point

the legislature has selected as an appropriate sentence for the crime committed.

Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a level 6

felony is between six months and two and one-half years, with an advisory

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sentence of one year. Ind. Code § 35-50-2-7. The sentencing range for the

habitual offender enhancement of a level 6 felony is between two and six years.

Ind. Code § 35-50-2-8. Conley received consecutive two and one-half year

sentences for his two convictions, with a five-year habitual offender sentence

enhancement on his auto theft conviction. [15] Conley makes no argument that the individual two and one-half year sentences

for his level 6 felonies are inappropriate in light of the nature of those offenses.

Instead, he complains that those sentences should be concurrent rather than

consecutive because his crimes of auto theft and operating a motor vehicle

while privileges are suspended as an HTV were “intertwined.” Appellant’s Br.

at 8. We are not persuaded that consecutive sentences are unwarranted.

Conley committed two separate offenses on different days, and he does not

claim that his crimes arose out of the same “episode of criminal conduct” as

contemplated by Indiana Code Section 35-50-1-2. 3 He committed auto theft on

August 6, 2015, and he committed operating a motor vehicle while privileges

are suspended as an HTV, likely repeatedly, over the next several days

culminating in his arrest on August 10, 2015. It was proper for the trial court to

impose consecutive sentences for separate statutory offenses. Zachary v. State,

469 N.E.2d 744, 749 (Ind. 1984). Moreover, the trial court found numerous

3 That section provides that the aggregate sentence for conduct constituting a single episode of criminal conduct, except in situations involving “crimes of violence,” may not exceed the advisory sentence for the class of felony that is one level higher than the most serious felony for which the defendant is convicted. See Ind. Code § 35-50-1-2.

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aggravating circumstances that Conley does not challenge. He has not shown

that the nature of his offenses warrants sentence revision. [16] As for Conley’s character, he concedes that he has an extensive criminal history

spanning more than twenty years. While he states that “some degree” of his

criminal history “is embodied in the habitual offender enhancement,” he has

numerous convictions that are wholly unrelated. Appellant’s Br. at 8. At the

time Conley committed the current offenses, he was on pretrial release on

different charges for the same felony offenses, as well as on three misdemeanor

charges for resisting law enforcement, theft, and criminal trespass. Prior

attempts at leniency and rehabilitation have proven unsuccessful, as Conley has

had his probation revoked six times. The record further shows that Conley has

a long history of drug and alcohol abuse and has routinely failed to complete

the treatment offered to him. All of this reflects quite poorly on Conley’s

character and is a strong indication that he is both unwilling and unable to alter

his criminal and self-destructive behavior. Under the circumstances, Conley

has not demonstrated that the ten-year aggregate sentence imposed by the trial

court is inappropriate in light of the nature of his offenses or his character.

Accordingly, we affirm his convictions and sentence. [17] Affirmed.

Kirsch, J., and May, J., concur.

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